Court: United States District Court for the Southern District of Texas, Houston Division
Case Name: Tsao v. Ferring Pharms., Inc.
Citation: 2018 U.S. Dist. LEXIS 49173
The plaintiff filed a suit for breach of warranty and trade practices against the defendant alleging that she had been given sub-potent and defective medication as part of her fertility treatment. She designated herself as an endocrinology expert to offer her opinion about the administration of the medication in question and the resulting implications.
The Endocrinology Expert
The plaintiff was an oncologist at a cancer center and the director of a mesothelioma and thoracic chemo-radiation center. She appointed herself to testify as an endocrinology expert witness. The defendant moved to exclude the plaintiff’s endocrinology expert testimony, arguing that she was not sufficiently qualified in the field of reproductive endocrinology and that her testimony included opinions that were beyond her personal knowledge of treatment that had been provided to her as an IVF patient. In her rebuttal to the challenge, the plaintiff asserted that her qualifications as a practicing medical doctor were sufficient to justify her testimony in the capacity of endocrinology expert.
The Endocrinology Expert Testimony
The plaintiff offered her opinion regarding the potency of her fertility treatment medication and its subsequent effect on her reproductive health and treatment. The plaintiff testified that the medication she was prescribed was supposed to stimulate her ovaries to the point that they were mature enough to harvest. However, the medication was sub-potent and thus, increased the period of ovarian stimulation. According to the plaintiff, this was problematic because prolonged ovarian stimulation adversely affected the quality of the eggs. The plaintiff testified that she had relied on the internet and consulted fertility and IVF treatment websites to form her opinion.
The court noted that the plaintiff had no education or formal training in reproductive endocrinology. She was not a gynecologist, obstetrician, or embryologist and had not completed any training in reproductive endocrinology. She had never worked as a reproductive endocrinologist or written an article on reproductive endocrinology. The court observed that her only experience with reproductive embryology was her time as a fertility patient.
The court further noted that her opinions were not founded on her medical expertise, as she did not possess specific medical knowledge that would qualify her as a medical expert in the relevant topics. The court was of the opinion that she failed to show that her role as a medical and educational oncologist in any way requires the care, evaluation, or assessment of the issues for which she had named herself as an expert. The court also found that the defendant had not shown any expertise, ability, experience, education or training that would qualify her as a drug recall expert with respect to her testimony concerning the drug recall. The court further noted that the plaintiff had not followed reliable methodology to base her causal opinions because they did not provide any scientific basis for the opinions.
The court held that the plaintiff was not an endocrinology expert, as she had designated herself. It was determined that the plaintiff’s testimony was based on unreliable methodology, namely, internet research. Thus, her testimony was excluded.